The General Court of the European Union has dismissed in its entirety Illumina’s appeal against the European Commission’s decisions of April 2021 to declare itself competent to analyse the merger between Illumina and Grail, in a judgment delivered on Wednesday 13 July (Case T-123/22) (see EUROPE 12824/11).
In the absence of turnover exceeding the relevant European thresholds, the acquisition of the US biotech company Grail, which develops cancer screening tests, by the US genome sequencing company Illumina did not have a European dimension and was not notified to the European Commission.
Following a complaint, the EU institution invited the competent national authorities to make a referral to the Commission under Article 22 of the Merger Regulation (139/2004) in order to examine the merger in question in so far as it affects trade between Member States within the European Economic Area and threatens to significantly affect competition in a Member State. The French, Greek, Belgian, Norwegian, Icelandic and Dutch authorities submitted such a request within less than 15 working days, as required by EU law.
By its judgment, the General Court is of the opinion that the contested decisions, insofar as the Commission recognised its jurisdiction to examine the merger at issue on the procedural and substantive basis provided for by the Merger Regulation, constitute challengeable acts within the meaning of Article 263 TEU.
The European Court considers that in accepting its jurisdiction, the Commission has correctly interpreted EU law. Indeed, a Member State is entitled to refer to the Commission any merger which meets the cumulative conditions set out. And the referral mechanism provides the flexibility to have mergers reviewed at EU level that may significantly impede effective competition in the internal market that would otherwise escape Commission and Member State scrutiny because they do not exceed the EU thresholds.
Such an interpretation does not disregard the principles of attribution of powers, subsidiarity or proportionality, the General Court also emphasises.
As regards the plea that the request for referral was untimely, the General Court found that the request was made in good time. On the other hand, it considers that the 47-day delay between the receipt of the complaint and the sending of the Commission’s letter of invitation to the Member States was unreasonable. However, according to the European Court, the failure to observe this reasonable time limit did not affect the ability of the companies to defend themselves effectively.
See the Court’s judgment: https://aeur.eu/f/2ly (Original version in French by Mathieu Bion)